Using Administrative Decision-Making processes to protect the environment

Ch 12

Administrative Decisions

Made by government officials or tribunals pursuant (under the authority of) to a statute that sets out the decision-making process

Decisions can be made by government employees or Cabinet minister (eg. project approvals)

Applicants are usually required to inform and engage the public and to provide feedback to decision-makers, but public hearings are not common

Who else can make administrative decisions?

Decisions can also be made by an impartial decision-maker (tribunal or board) typically involve some form of hearing

Public hearing procedure similar to that in a court - quasi-judicial - but usually less formal with more relaxed rules of procedure and evidence???

Other types of tribunal do exist and are less formal (eg. environmental appeal boards, review panels)

Tribunal Procedures

• Law governing administrative procedures attempts to balance efficiency and fairness

• Informal processes quicker and less expensive than formal court processes and allow a broader range of evidence and sources to be admitted, but they may be less fair/objective

• natural justice (procedural fairness) is the fundamental procedural concept ??

• Common law rights of procedural fairness apply and fill any gaps (unless specifically changed/excluded in a statute)

Three main elements of tribunal procedures

Reasonable notice of proposed decision and key issues against affected parties

a fair opportunity to be heard, orally or in writing

an impartial and independent decision-maker

what is evidence

facts, objects, and sometimes opinions that are presented to decision maker for the purpose of reaching a decision

must be relevant to the subject of the decision and be reasonably reliable

because tribunals do not usually observe the stringent evidence rules of courts, hearsay evidence and opinions are often allowed

What does the record of tribunal proceedings look like

includes the decision challenged and all evidence and arguments presented at a hearing

how does one obtain party status?

may depend on meeting a statutory test (being “directly affected” by a decision)

If there is no statutory test, tribunals may create their own tests and/or categories

What must tribunals do in proceedings?

Tribunals must (as their statutes require) reach explicit final decisions

written reasons for their decision are also often released, though this is not a general requirement

Can tribunals make parties pay costs?

Some tribunals can make unsuccessful? parties to pay the costs of successful parties

• a major criterion of assessing the cost requests is whether the applicant has made a substantial contribution to the appeal and has focused on the important issues???

Some tribunals can award participation funding (whether participants win or lose)

• requests are made in advance of hearing to assist parties in the participation of the hearing process.

Appeals

There is no automatic right to appeal an administrative decision; an appeal must be provided for in the statute???

Where a right to appeal is provided, sometimes it is necessary to recieve leave to appeal before presenting a case?

Two forums for appeal

• appeals to another administrative tribunal(eg. envr appeal board)???

• Appeals to a court

Two types of appeals

• Appeals de novo (new hearings where everything is reheard and reconsidered and new evidence or arguments may be presented)

• Appeals on questions of law and jurisdiction (no new evidence, limited to legal arguments)

Different types of appeal tribunals

Provincial legislation has established a number of specialized tribunals to hear appeals from administrative decisions (eg. Alberta’s Envr Appeals Board, Ontario’s Envr Appeal Board)

Who has the right to appeal?

Operators against whom orders have been made, and individuals who meet statutory standing requirements have right to appeal

Advantages of environmental appeal boards

• members have environmental expertise

• less formal procedures

• usually include a well-developed mediation process

main disadvantage of environmental appeal boards

sometimes (as in Alberta) appeals are subject to approval by environment ministers?????

Substantive Judicial Review

• It is possible to challenge board decisions in court, but not easy

• The grounds for judicial review are narrow

• Courts may deny judicial review if they are satisfied that an adequate alternative remedy (eg. statutory appeal to an environmental appeal board) exists and has not been pursued

What three things does standing for judicial review require

• serious legal issue to be determined that affects the applicant directly

• The applicant has “genuine interest as a citizen”? in the decision

• That there is no other reasonable and effective manner in which the issue may be brought before the court

Two standards of review when reviewing an administrative decision

correctness or reasonableness

standard of review is the depth of the review done by the court and reflects how much deference will be afforded to the administrative decision maker

When determining which standard of review applies, the court looks at whether the tribunal interpreted its empowering statute and at any relevant cases

What factors does the court consider when determining a standard of review?

• privative cause

• expertise of the decision-maker

• policy versus technical issue

• law versus fact

• because procedural fairness involves legal rights, the standard of review associated with judicial reviews based on procedural fairness is always correctness

A court may find an environmental deciision-maker made a reviewable error on certain grounds asserted by the applicant. Examples of these grounds:

• substantive ultra vires

• Real or apprehended bias

• breach of procedural fairness

There are limited constitutional grounds for judicial review in environmental law (either acting outside constitutional authority or infringing on Charter rights)

Infringement of Charter rights has gained little traction as an argument

Public inquires

under public pressure, the govt may establish public inquires into environmentally sensitive topics. This rarely occurs only in the case of significant proposed development (eg. Berger Inquiry)

More often arise when envr problems emerge or disasters occur, eg. walkerton tragedy

Public inquiries operate independently of governments, their creation is entirely a matter of govt discretion,

Usually, inquiries hold public hearings that provide a public forum for discussion